Big en banc 4th Amendment opinion comes down 7-5

It's the usual battle lines in United States v. Paul Johnson, Jr.

William Pryor for the majority, which includes Ed Carnes, Tjoflat, Marcus, Newsom, Branch and Grant. Newsom concurs, Branch concurs (joined by Grant), Jordan dissents, Rosenbaum dissents, and Jill Pryor dissents (joined by Wilson, Martin, and Jordan).

Lots of interesting writing and fighting here.

Pryor starts off this way:

This appeal requires us to decide whether a police officer violated the Fourth Amendment when he removed a round of live ammunition and a holster from the pocket of a suspect during a protective frisk, see Terry v. Ohio, 392 U.S. 1 (1968). At 4:00 a.m., the officer responded to a call about a burglary in progress in a high-crime area. When the officer arrived at the scene, he saw Paul Johnson, who matched the burglar’s description, standing in a dark alley. After detaining Johnson, the officer frisked him and immediately recognized that he had a round of ammunition in his pocket. The officer removed the ammunition and an empty holster covering it. He then canvassed the area and found two pistols less than a foot from where he first saw Johnson. After a grand jury indicted Johnson for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), he moved to suppress the pistols, ammunition, and holster, but the district court denied his motion. A panel of this Court reversed. United States v. Johnson, 885 F.3d 1313 (11th Cir.), reh’g en banc granted, op. vacated, 892 F.3d 1155 (11th Cir. 2018). We then vacated that decision and ordered rehearing en banc. We now affirm the denial of Johnson’s motion to suppress because the officer was entitled to seize the ammunition to protect himself and others.

Newsom writes a concurrence saying that both sides have nice totality of the circumstances arguments and that on balance he's with the majority, but he favors bright lines and would end up saying that cops can always seize a bullet:

So in the next “bullet case,” rather than asking—or worse, requiring the responding officer to ask—whether the neighborhood is sufficiently scary, the hour sufficiently late, the light sufficiently dim, and the suspect and scene sufficiently secure, I would simply hold that the Fourth Amendment permits the protective seizure.

Branch agrees (Grant joins) with Newsom but writes separately without all of the nice stuff about the dissents:

Because I conclude that a bullet falls in to the category of “guns, knives, clubs, or other hidden instruments for the assault of the police officer,” id. at 29, and cannot logically be separated from a gun for Terry purposes, I would find that anytime an officer conducts a lawful Terry frisk, the officer may seize any bullet located during the frisk.

Jordan dissents and says, what about originalism? Originalism would not have allowed this to go forward and all of those in the majority who are generally champions of originalism are awfully quiet now:

Relying on Justice Scalia’s originalist position, Mr. Johnson argues that we should construe Terry narrowly, and not extend it to allow the seizure and removal of items that are neither weapons nor contraband. See Mr. Johnson’s En Banc Br. at 18-23. But the majority barely acknowledges this argument, and declines to address its merits. According to the majority, we are bound by Terry, and must therefore ignore the original understanding of the Fourth Amendment.2
The majority is correct that Terry constitutes binding precedent, and that no one on this court can wish it away. But accepting Terry does not require extending its reach on an issue of first impression. Terry permitted pat-downs for weapons, and only weapons. See Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979) (“Nothing in Terry can be understood to allow . . . any search whatever for anything but weapons.”). By allowing officers to seize a stand-alone bullet from an unarmed suspect who is in handcuffs and being held at gunpoint by several officers, the majority expands Terry beyond its “narrow scope.” Dunaway v. New York, 442 U.S. 200, 210 (1979).

Rosenbaum dissents, arguing that the majority is answering a question that was never briefed or argued:

Today we hold that any ammunition may always be seized during a frisk when the searching officer immediately identifies it as ammunition, regardless of any surrounding circumstances. This is a new rule that we did not ask the parties to address, that neither party briefed, and that the government expressly declined to adopt at oral argument.
Indeed, during oral argument, the Court asked the government, “Once you feel the bullet, the officer can seize the bullet. Is that the government’s position?” Recording of Oral Argument dated Oct. 24, 2018, at 38:58. And the government responded without equivocation, “No, Your Honor.” Id. Then the government explicitly stated, “We are not asking the Court to rule that a bullet in isolation in all circumstances would be sufficient to reach in [to the pocket and seize]; we are asking the Court to apply the facts-specific Fourth Amendment tests that this Court has applied and other courts have applied . . . under the totality of the circumstances.” Id. at 51:34.1
Because we operate only “as arbiters of legal questions presented and argued by the parties,” Nat’l Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 148 n.10 (2011) (citations and internal quotation marks omitted), once the government disclaimed the per se rule at oral argument, we were left with only two permissible options: apply a true totality-of-the-circumstances test or rehear the case, ask the per se question to the parties and, if necessary, appointed counsel, and analyze the arguments presented. Instead, the Majority Opinion takes a third route and adopts the new per se rule on its own. That new rule may well be correct. Or it may not. But if we wanted to consider such a rule, we should have asked the parties to brief and argue it in this en banc proceeding, instead of asking them to brief and argue a more discrete question.

Judge Rosenbaum is the Kagan of our Circuit. A glimpse here from the conclusion:

Charades may be fun at parties, but not in judicial opinions where officer safety and privacy rights hang in the balance. I therefore respectfully decline to engage in that activity.12
IV.
Today we issue a new rule we did not ask the parties to brief, they did not brief, and the government expressly disavowed. And we do this even though we could have obtained the parties’ input on the question we decide today. I respectfully decline to participate in that activity. The parties’ testing of the issues we decide is and should be the engine that drives our adversarial system.

Jill Pryor's dissent (joined by Wilson, Martin, and Jordan) defends the panel decision:

The panel correctly held that the seizure of a bullet and holster from the pocket of Mr. Johnson—who was compliant with officers’ commands, on the ground, handcuffed behind his back, and held at gunpoint by several officers—constituted an unreasonable seizure under Terry and its progeny. See United States v. Johnson, 885 F.3d 1313, 1323-24 (11th Cir. 2018). With respect, I dissent from the majority opinion’s contrary holding.

The Supreme Court addresses whether FUCT can be trademarked

The issue at yesterday’s oral argument was whether Section 2(a) of the Lanham Act’s prohibition on the federal registration of “immoral” or “scandalous” marks is facially invalid under the free speech clause of the First Amendment.

Some background from SCOTUSblog:

This case arose when Erik Brunetti applied to register his trademark FUCT for use as a brand for clothing. Brunetti started a streetwear company in 1990 with professional skateboarder Natas Kaupas, and later applied to register the trademark with the USPTO. The examining attorney rejected Brunetti’s trademark application on the basis that the mark is a phonetic equivalent of a vulgar word. The Trademark Trial and Appeal Board affirmed the refusal, finding that the examiner had provided sufficient evidence that a substantial composite of the general public would find the mark vulgar. The TTAB stressed that consideration of the constitutionality of Section 2(a) was beyond the scope of jurisdiction of the TTAB.

On appeal, the U.S. Court of Appeals for the Federal Circuit agreed that substantial evidence supported the board’s findings that the FUCT mark is vulgar and was therefore unregistrable under Section 2(a). However, it ultimately reversed the board’s holding. The Federal Circuit found that the bar on registering scandalous and immoral trademarks is a content-based restriction on free speech in violation of the First Amendment.

This case arises in the aftermath of, and perhaps as a natural consequence of, Matal v. Tam, which struck down the registration bar for the other type of offensive trademarks — those deemed disparaging. In Tam, the Supreme Court held that trademarks are private, not government, speech, and an examiner may not refuse to register trademarks based on the particular viewpoint the trademarks express. Because the disparagement provision in Section 2(a) denied registration to any trademark that was deemed disparaging by a substantial composite of the referenced group, it discriminated based on viewpoint: “Giving offense is a viewpoint.” The court found that whether strict scrutiny or a more lenient standard used to evaluate the constitutionality of restrictions on commercial speech under Central Hudson Gas & Electric Corp. v. Public Service Commission of New York applied, the provision could not withstand either level of review because it was not narrowly tailored to serve a substantial government interest. Justice Anthony Kennedy explained in his concurrence that “the central purpose of trademark registration is to facilitate source identification… Whether a mark is disparaging bears no plausible relation to that goal.”

There were legal gymnastics at oral argument not to say the word FUCT. More from SCOTUSBlog:

Sommer has pre-empted the warning that has typically come from the court about not using profane or vulgar language during arguments in past cases involving Paul Cohen’s “F**k the Draft” message on the jacket he wore in a courthouse, George Carlin’s “Filthy Words” routine (or the “seven words you can’t say on the public airwaves”), and the “isolated utterances” of obscene words on television.

An amicus brief on Brunetti’s side from the Cato Institute, besides offering its own thoughtful take on the importance of vulgar language in society, directs readers to a fascinating article in a 2012 issue of the William & Mary Bill of Rights Journal by Thomas Krattenmaker, who was a law clerk to Justice John Marshall Harlan. In Cohen v. California, Harlan (and mostly Krattenmaker, by his account) wrote the opinion for the court that said the anti-draft message on the jacket was protected from criminal prosecution by the First Amendment.

Krattenmaker relates the well-known fact that before oral argument in Cohen in the fall of 1970, then-Chief Justice Warren Burger sought to head off the use of the offending word by telling Cohen’s lawyer that the justices were familiar with the facts of the case. But the lawyer, Melville Nimmer, used the word in response to the first question he received. Krattenmaker further relates that Nimmer worried that court security personnel might jump up and say, “He said F*** in the Supreme Court, grab him!”

No one grabbed Nimmer that day, of course.

***
One thing the justices seem to agree on this morning is that the Trademark Office has been thoroughly inconsistent in its treatment of trademark applications involving the “seven dirty words” and their variations.

Justice Neil Gorsuch refers to the appendix at the end of Brunetti’s merits brief, which provides a four-page guide to those inconsistencies with examples that would make any sailor blush.

“There are shocking numbers of ones granted and ones refused that do look remarkably similar,” Gorsuch says.

(The appendix is part of the printed “red brief,” but is a separate document in the court’s docket for the case. Parental Guidance suggested. And by that, we mean that some parents may need to consult their 20-something children for explanations.)

We weren’t surprised to learn that the motto on the wallet of Samuel L. Jackson’s character (Jules) in “Pulp Fiction” was rejected for federal trademark protection. (As Jules puts it in the classic 1994 Quentin Tarantino film, “It’s the one that says ‘Bad Mother F*****.’”)

When Stewart starts to discuss an example by spelling out a phonetic equivalent for the profane past participle form of the word at issue, Gorsuch cuts him off.

“I don’t want to go through the examples. I really don’t want to do that,” he says to laughter from the courtroom.

Senate takes Spring Break

The Senate is off for the next two weeks, which means that the vote on Rudy Ruiz likely won’t happen until they are back. So judges will have to wait on the next batch of reassignment orders...

Roy Altman has been sworn in (UPDATED with news regarding Rudy Ruiz)

Update — The Senate is moving forward with Rudy Ruiz on Monday with the cloture motion ripening.  He should be confirmed early next week.  

Judge Marcus had the honor of swearing in Roy Altman yesterday.  Not minutes later, judges started reassigning cases to Judge Altman!

Here's a nice picture of the event:

Esformes forfeiture verdict

The Esformes trial is finally over ...

The forfeiture trial was Monday, and the jury deliberated and reached a verdict yesterday.  But only after some drama in which there were a flurry of notes saying that they were hung and that one jury was holding out for the defense.  But the jury ended up coming back, refusing to forfeit most of the assets the government was asking for. Instead, it decided that the government was entitled to interests in the operating companies for seven facilities.

Next up is sentencing.

The Secret Service plugged Zhang's thumb-drive into its computer

Um, whoops?

Yujing Zhang, the woman who was arrested at Mar-a-Lago, with her thumb-drive had her bond hearing today in West Palm Beach.  She was represented by the Federal Public Defender's office.  This gem came out during the agent's testimony (via the Miami Herald):

On Monday, wearing a short-sleeved, navy-blue detainee uniform and chewing her lower lip, Zhang glanced repeatedly at the crowd of journalists who had gathered for the hearing. Her hands were clenched in fists so tight they began to turn red. She appeared to speak in English with one of the attorneys representing her, although a court-appointed Mandarin interpreter was also present. When the hearing started, she began taking notes on a yellow legal pad.

Adler, Zhang’s attorney, pushed back during the hearing on the idea that she was a spy.

“She did not have the type of devices that can be associated with espionage activities,” he said.

Garcia, the prosecutor, replied that “there is no allegation [in the criminal complaint] she was involved in espionage ... all of this is irrelevant.”

“That’s good to know,” Adler said.

Later, Garcia said he could not rule out more serious charges.

“There are a lot of questions that remain to be answered,” he told the judge.

Investigators are still trying to determine the nature of the malware Zhang allegedly brought into the club, sources told the Herald. It is not clear how much of a threat the malware posed and whether it might have been intended to gather information at the president’s club or possibly to destroy an existing network or program, they said.

Secret Service agent Samuel Ivanovich, who interviewed Zhang on the day of her arrest, testified at the hearing. He stated that when another agent put Zhang’s thumb drive into his computer, it immediately began to install files, a “very out-of-the-ordinary” event that he had never seen happen before during this kind of analysis. The agent had to immediately stop the analysis to halt any further corruption of his computer, Ivanovich testified. The analysis is ongoing but still inconclusive, he said.

Insys case to jury

In addition to Esformes, there is another huge health care trial that just went to the jury after 43 days of testimony.  It’s known as the Insys case and it involves John Kapoor, the CEO of Insys, in Boston federal court.  From NPR:

Kapoor, the founder of Insys Therapeutics, allegedly oversaw a marketing strategy that paid doctors more than $1 million to prescribe Subsys in high doses — often to patients who did not need it. Subsys is a highly addictive opioid painkiller up to 100 times stronger than morphine.

Then, prosecutors claim, Insys set up a call center to ensure the expensive medication was covered by insurers. At the call centers, Insys employees allegedly pretended to be from doctors' offices and fabricated diagnoses and other information necessary to get the medication approved.

"The decisions, the money, the strategy came from the top," Yeager said. The obligation of physicians to "first, do no harm, became: First, do what you're told."

Yeager showed the jury internal company spreadsheets detailing how much money Insys had paid each doctor and the ROI, or return on investment, from those payments. That is, exactly how much money the company was making back via prescriptions from each doctor it had paid. Yeager suggested it should be called ROB — "return on bribe."

***

Kapoor, the founder of Insys Therapeutics, allegedly oversaw a marketing strategy that paid doctors more than $1 million to prescribe Subsys in high doses — often to patients who did not need it. Subsys is a highly addictive opioid painkiller up to 100 times stronger than morphine.

Then, prosecutors claim, Insys set up a call center to ensure the expensive medication was covered by insurers. At the call centers, Insys employees allegedly pretended to be from doctors' offices and fabricated diagnoses and other information necessary to get the medication approved.

"The decisions, the money, the strategy came from the top," Yeager said. The obligation of physicians to "first, do no harm, became: First, do what you're told."

Yeager showed the jury internal company spreadsheets detailing how much money Insys had paid each doctor and the ROI, or return on investment, from those payments. That is, exactly how much money the company was making back via prescriptions from each doctor it had paid. Yeager suggested it should be called ROB — "return on bribe."

Philip Esformes verdict -- Hung on Health Care, convicted of other counts (UPDATED & EDITED)

The Philip Esformes jury came back this morning -- hung jury on the main counts of health care and found guilty of other counts (including the kickback and money laundering counts) after a hard fought trial and lengthy deliberation.

Both sides will claim victory (as is happening in the press). The defense can argue that it won because of a hung jury on the main health care counts after a long trial.  The defense will argue that the case was billed as the largest health care fraud case but it resulted in no health care fraud count convictions.  That may be true for the lawyers, but it will be a tough sell when Esformes is ultimately sentenced. And the government can certainly say that it won with lots of convictions and no acquittals.  It will be interesting to see what sentence is ultimately handed out.  (I’ve edited this paragraph of this post a few times after thinking about the verdicts and what they mean.)

The poor jury thought they were done with the case, but now have to come back on Monday to handle the forfeiture portion of the trial.

Update— actually, the jury knew it would have to come back. Judge Scola informed them that after phase 1, there would be a few more days of evidence.

Congrats to Judge Roy Altman

He was just confirmed, 66-33.

Senate goes nuclear over Roy Altman

There's a lot of political back and forth over Trump's recent judicial nominees.  Miami is always ground zero, and it was here too as Altman was the first judicial selection to test the nuclear option today.  And boom, the Senate did go nuclear, and the bottom line is that the final vote for Altman will be tomorrow (Thursday) at 11:45. He will very likely be our newest district judge.

Here's Roll Call explaining a little more about the process.  And here are some tweets by the Senate Cloakroom with what happened today:

• Votes Scheduled: At 11:45am TMRW the Senate will proceed to 2 votes: 1.Confirmation of Cal. #32 Altman to be U.S. District Judge for the Southern District of FL
• Invoked, 66-33: Motion to invoke cloture on Executive Calendar #32 Roy Altman to be U.S. District Judge for the Southern District of Florida 

Interestingly, because Altman will be confirmed first, he will have seniority over Ruiz and Smith.

In Defense of Joe Biden

That’s my latest piece in The Hill. The intro:

It’s official: The pendulum of #MeToo claims has now swung too far. When a friendly gesture with no sexual intent is labeled a reprehensible act that should be subject to public shaming and even disqualification from public office, it is time that we all recognize that we are starting to lose perspective.

Let’s be clear before I continue: I am not talking about the crass comments by the current President that it’s okay to “grab [women] by the pussy” or inappropriate sexual relations between then-President Clinton and an intern. Those are clearly beyond the pale. But the “allegations” against Joe Biden — that he touched Linda Flores’ shoulders and kissed the back of her head — are very different.

Biden is an affectionate guy, but in a grandfatherly sort of way. He explained: “In my many years on the campaign trail and in public life, I have offered countless handshakes, hugs, expressions of affection” and never intended to disrespect or cause any harm to Flores or anyone else. But Flores has gone so far as to say that Biden’s intent is irrelevant. Kelly Ann Conway has repeated this argument, saying that it does not matter what Biden intended.

Of course Biden’s intent is relevant. It’s the most important question here. That’s why Stephanie Carter, wife of secretary of Defense at the Pentagon, has had to publicly speak out about the picture of her and Biden that is making the rounds again. As Carter made clear, "The Joe Biden in my picture is a close friend helping someone get through a big day, for which I will always be grateful. So, as the sole owner of my story, it is high time that I reclaim it – from strangers, Twitter, the pundits and the late-night hosts."

Please read the whole thing and lemme know your thoughts...

"I'm saving her for Ginsburg."

That was your President, Donald Trump, when telling confidants his plans for Amy Coney Barrett.  I guess we should not be surprised by the crass comment.

From Axios:

As he was deliberating last year over replacing Supreme Court Justice Anthony Kennedy, President Trump told confidants he had big plans for Judge Amy Coney Barrett.

"I'm saving her for Ginsburg," Trump said of Barrett, according to three sources familiar with the president's private comments. Trump used that exact line with a number of people, including in a private conversation with an adviser two days before announcing Brett Kavanaugh's nomination.

***

Yes, but: There's no guarantee Trump will get another Supreme Court pick. It's very unlikely Ginsburg will retire while he’s in office. And though she's 86 and has had 3 bouts with cancer, she's on the bench now and appears healthy.

Barrett isn't a lock even if Trump does get to make another appointment, the people familiar with his thinking said.
Barrett has the inside track "in a very specific sense," said a source who's discussed Barrett with Trump. "She is the most known quantity right now amongst the women on the list. ... And she also has the inside track in the sense that she was kind of battle-tested for having gone through a confirmation already."
Between the lines: Trump changes his mind all the time, and Barrett would need to undergo a fresh round of vetting to review the rulings and public comments she's made since confirmed to the 7th Circuit Court of Appeals in 2017.

"The Supreme Court judicial selection process with the president is a very fluid one," said a source familiar with Trump's thinking on the subject. "He floats in and out of these discussions over a period of time."
Barrett's education didn't appeal to Trump, according to sources familiar with his thinking. She went to law school at Notre Dame, and Trump prefers candidates with Harvard and Yale on their resumes.

Why it matters: Trump has already pulled the court well to the right. If he gets to replace Ginsburg, especially with Barrett, he would cement a young, reliably conservative majority that could last for decades.

It’s closing time.

At 8:30am tomorrow morning in Judge Scola’s courtroom, the Esformes trial heads to closing arguments. It’s been a long and emotional trial.

It took all day to do the charge conference.

And the defense just filed this doozy of a motion of a dismiss, saying that because DOJ took the position that the entire ACA was unconstitutional. This would include, according to the defense, the provisions that criminalized health care fraud and kickbacks. Judge Scola is giving the government a chance to respond, but after closings.

***

In other (sad) news, Miami Beach legend Seymour Gelber passed away at 99. What an incredible life. The entire Herald obit is worth a read. Here’s the intro:

Former prosecutor, juvenile judge and Miami Beach Mayor Seymour Gelber was a local luminary. But by his own account, he was simply a streetwise kid from Brooklyn who used enough smarts and a little bit of luck to get ahead in life.

Gelber cut a self-effacing figure, disguising a shrewd legal mind that made him a heavyweight in jurisprudence who took his work seriously — but never himself.

“I never liked it,” he quipped about law school. “Never thought I would like to be a lawyer.”

His doubts faded as he ascended the ranks to become a respected jurist who shaped Miami-Dade’s juvenile justice system. He later served as mayor of Miami Beach while the city emerged from a tumultuous period rocked by corruption in the early 1990s. In the coda to his life of public service, Gelber provided a steady hand to guide City Hall.

Gelber died Thursday at age 99, his family said. He leaves behind a legacy that looms large in courtrooms and local government.

Can the President block Twitter users?

It seems like only this President would argue yes...

The Second Circuit seemed skeptical:

He had blocked many critics from his account, which prevents them from directly responding to his tweets.

U.S. District Judge Naomi Reice Buchwald ruled last May that this violated the users’ First Amendment rights, prompting Trump to unblock at least some of these accounts. The decision came in a lawsuit brought by the Knight First Amendment Institute at Columbia University and several Twitter users.

A lawyer for the U.S. Department of Justice, arguing for the president on Tuesday, urged three judges of the 2nd U.S. Court of Appeals in Manhattan to overturn Buchwald’s decision.

While Trump does use his Twitter account for government business, it was not a public forum, the attorney, Jennifer Utrecht, told the judges.

When Judge Barrington Parker asked why blocking users for their political views did not violate the First Amendment, Utrecht said blocking was akin to Trump walking away from a person trying to talk to him on the street.

The judges had fewer questions for Jameel Jaffer, the lawyer for the plaintiffs.

Jaffer said that although Twitter is a private platform, Trump was effectively inviting the public to participate in an open forum by using it for government purposes.

“The whole point of Twitter is to facilitate interactions between users,” Jaffer said.

“Barr and Rosenstein likely made correct legal decision on obstruction”

That’s the title of my piece in The Hill, examining the obstruction of justice statute and recent Supreme Court cases restricting prosecutors from attempting to broadly use it. The intro:

Mueller March Madness! No new indictments, no collusion, no obstruction charges, but no obstruction exoneration either. Upsets, favorites, and Cinderellas … all depending on your political point of view.
The 4-page summary letter of the Mueller report already has been subject to copious punditry, but very little has been said about the law regarding obstruction of justice. Many will criticize the attorney general as being politically motivated for not proceeding on obstruction charges, but his letter tracked the Supreme Court’s limitations on obstruction of justice prosecutions.

In light of a long line of Supreme Court precedent that has limited various obstruction statutes, even reversing convictions, the decision has legal support. To successfully bring obstruction charges, a prosecutor would have to prove that a defendant did more than lie, get others to lie, or even destroy documents.
The special counsel “did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction.” While the report “does not conclude that the president committed a crime, it also does not exonerate him.” Instead it left “any legal conclusions … to the Attorney General to determine whether the conduct described in the report constitutes a crime.”
Attorney General William Barr, along with Deputy Attorney General Rod Rosenstein, then “concluded that the evidence developed … is not sufficient to establish that the President committed an obstruction-of-justice offense.” The reasons cited in the short letter include:

• “the President was [not] involved in an underlying crime related to Russian election interference”;

• he did not act “with corrupt intent”; and

• there was no “nexus” with the president’s conduct “to a pending or contemplated proceeding.”

Of course none of us knows yet what facts the special counsel found. And it sure sounds like there is quite a bit of evidence “on both sides.” But even assuming some really bad facts for the president, the attorney general made the cautious — and most likely the right — legal decision not to go forward based on recent Supreme Court cases on obstruction.

Please click through and read the whole thing, and give me your thoughts.

A judge, an Olympic gold medalist, and a sports agent

Those were three of the defense witnesses in the Esformes trial on Friday before Judge Scola.  The trial is winding down now and the defense will likely rest this week.  The government will put on a short rebuttal and then closing arguments are expected as early as next Monday.  The gold medalist was Maurice Greene.

In other District news, the Southern District of Florida's Black History Month program was postponed due to the federal government shutdown. It has been rescheduled for Friday, March 29th, at 11:30 am.

Panelists include Dr. Keneshia Grant, Political Science Professor at Howard University, and Karen Andre, an Attorney and political strategist. The panel will be moderated by Magistrate Judge Lisette Reid.

RSVP by today to: FLSD_Program@flsd.uscourts.gov

Legal writing on display in latest en banc back and forth

This time it's a civil case and it's Judge Newsom for the majority, in which ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, JORDAN, BRANCH, and GRANT, Circuit Judges, joined.

Judge Rosenbaum filed an opinion concurring in part and dissenting in part, in which MARTIN and JILL PRYOR, Circuit Judges, joined.

Newsom frames the issue:

Faced with a defendant’s motion for summary judgment, a plaintiff asserting an intentional-discrimination claim under Title VII of the Civil Rights Act of 1964, the Equal Protection Clause, or 42 U.S.C. § 1981 must make a sufficient factual showing to permit a reasonable jury to rule in her favor. She can do so in a variety of ways, one of which is by navigating the now-familiar three-part burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by proving, among other things, that she was treated differently from another “similarly situated” individual―in court-speak, a “comparator.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258–59 (1981) (citing McDonnell Douglas, 411 U.S. at 804). The obvious question: Just how “similarly situated” must a plaintiff and her comparator(s) be?
To date, our attempts to answer that question have only sown confusion. In some cases, we have required a proper comparator to be “nearly identical” to the plaintiff. See, e.g., Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1185 (11th Cir. 1984) (citations omitted). In others, we have expressly rejected a nearly-identical standard. See, e.g., Alexander v. Fulton Cty., 207 F.3d 1303, 1333–34 (11th Cir. 2000). In still others, without even mentioning the nearly-identical benchmark, we have deemed it sufficient that the plaintiff and the comparator engaged in the “same or similar” conduct. See, e.g., Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam). And to make matters worse, in still others we have applied both the nearly-identical and same-or-similar standards simultaneously. See, e.g., Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). It’s a mess.
In an effort to clean up, and to clarify once and for all the proper standard for comparator evidence in intentional-discrimination cases, we took this case en banc and instructed the parties to address the following issue:

The Supreme Court has held that in order to make out a prima facie case of discrimination under Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, or 42 U.S.C. § 1981, a plaintiff must prove, among other things, that she was treated differently from another “similarly situated” individual. What standard does the phrase “similarly situated” impose on the plaintiff: (1) “same or similar,” (2) “nearly identical,” or (3) some other standard?

 More:

So, we are left to try to find the sweet spot between Lewis’s squishy not-useless standard and the City’s preferred nearly-identical standard. For reasons explained below, we hold that a plaintiff proceeding under McDonnell Douglas must show that she and her comparators are “similarly situated in all material respects.”

Judge Rosenbaum has this to say about the Majority:

The Majority Opinion tries to hide the “not onerous” elephant in the McDonnell Douglas framework by wishing it away as a mere “descriptor that doesn’t pertain to the substantive standard that governs the prima facie analysis.” Id. In the Majority Opinion’s view, then, the plaintiff’s burden to establish a prima facie case is “not onerous” with respect to something other than her burden to establish a prima facie case under the substance of the standards governing the prima facie case.
Wait . . . what?
Of course, whether standards are onerous or not governs whether the plaintiff’s burden on the prima facie case is onerous or not. It makes no sense to speak of the plaintiff’s prima facie burden as “not onerous” if the plaintiff must, in fact, satisfy an onerous substantive standard to meet her prima facie burden.

En banc fight

The issue is whether published panels orders should be binding on all subsequent panels.  The 11th Circuit denied en banc review.  But Judges Martin, Jill Pryor, and Wilson all wrote dissents from the denial of en banc review.  Judge Rosenbaum joined the dissent as well.

Judge Tjoflat wrote an opinion concurring in the denial of rehearing en banc, joined by Ed Carnes, William Pryor, Newsom and Branch.  Judge William Pryor wrote an opinion respecting the denial of rehearing en banc.  Judge Jordan wrote an opinion concurring in the denial of rehearing en banc.   Judge Marcus did not join any opinion but appears to have voted against en banc review.  In all, 90 pages of opinions.

Judge Tjoflat starts his off in a very aggressive tone:

Two dissents—those by Judges Wilson and Martin—have seized upon this direct appeal case as an opportunity to criticize our Court’s processing and publishing of orders on federal prisoners’ applications to file successive motions under 28 U.S.C. § 2255(h). Those dissents not only distort the factual context but also contain unfounded attacks on the integrity of the Court as an institution. So, regrettably, a response is required to set the record straight.
These two dissents focus on only prisoners’ post-conviction applications to file successive § 2255 motions. To place the subject matter of the dissents in context, it is necessary to describe first (1) the nature of the instant direct-appeal case and (2) how, after a direct appeal, a federal prisoner has yet another post-conviction opportunity to challenge his sentence through an initial 28 U.S.C. § 2255 motion. Second, I explain how Congress has strictly limited prisoners’ applications to file successive § 2255 motions that seek to challenge yet again a federal conviction and sentence that has long since become final.
Third, to correct the record about our Court’s published orders ruling on such applications, I provide the statistics that show how our Court has published only 1 to 2% of its orders on post-conviction applications to file successive § 2255 motions, even in 2016, the year on which the dissenters focus. Lastly, contrary to what the dissents claim, I discuss how all published orders of this Court are always subject to further review, such as the en banc poll in this very case. As explained below, there simply isn’t (nor has there ever been) any crisis about our Court’s published orders.

Judge Wilson responds in his conclusion:

Judge Tjoflat takes offense to my dissent, which sheds light on what I believe is an unfair process.5 Thoughtful and respectful disagreement is essential to our constitutional directive—“[t]he premise of our adversarial system is that appellate courts . . . [are] arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.). There is sometimes impassioned but collegial disagreement about the answers to those questions. But to turn substantive disagreement into a sweeping charge that contrary views are “attacks on the integrity of the court as an institution” is another thing entirely. It is the great respect for both this Court as an institution and the judicial role that leads members of this Court to dissent. And if anyone has the duty to raise concerns about the fairness of this Court’s process for resolving a category of appeals, it is a member of this Court. Consistent with that duty, I will continue to express disagreement when important issues are at stake. In another case, when Judge Tjoflat is in the minority, he will be entitled to do the same.

 And Judge Martin responds in her introduction:

Federal judges who decide cases in groups are bound to have differences of opinions about how those cases are decided. I’ve always understood that it is the discussion of those differing views that furthers the development and evolution of the laws and precedent that govern us all. My understanding does not appear to be unique, because if there is any member of this court who has not written a dissenting opinion, they have not been on this court for very long. As for this dissent, it is certainly not an attack on the institution of the federal courts, to which I have devoted the last eighteen years of my professional life. Rather, this dissent is intended to honor the role I have been given on this court. I understand my oath to require me to point out procedures or interpretations of the law that I view as hampering our ability to administer justice to the people who come before us. If I have distorted any fact in this opinion, I request that someone tell me what that fact is so that I can correct my mistake.
As my colleagues have pointed out, this case is the direct appeal of Michael St. Hubert, who was sentenced to serve a 32-year prison sentence in 2016. Although this is Mr. St. Hubert’s first opportunity to challenge his conviction and sentence in this court, his opportunity is limited by rulings this court has made in our habeas jurisprudence. So while Mr. St. Hubert is sitting in prison, his case has generated what I view as a healthy discussion of how it came to pass that he will be required to serve the entirety of a sentence that could not be legally imposed upon him if he were sentenced today. Six of the twelve of the active judges on this court have written opinions about Mr. Hubert’s case, so it seems to have merited a valuable exchange of viewpoints.
Michael St. Hubert was 37-years-old when he pled guilty to two firearms charges brought against him under 18 U.S.C. § 924(c). At that 2016 hearing, the District Judge explained that Mr. St. Hubert would not be a free man until after his 69th birthday. Then, in a sprawling opinion reviewing Mr. St. Hubert’s direct appeal, a panel of this Court affirmed Mr. St. Hubert’s convictions and 32-year sentence, holding that the offenses underlying his convictions—Hobbs Act robbery and attempted Hobbs Act robbery—qualify as crimes of violence under § 924(c)’s residual and use-of-force clauses. See United States v. St. Hubert (“St. Hubert II”)6, 909 F.3d 335 (11th Cir. 2018).
There are several problems with the panel opinion that I believe deserve the attention of the en banc Court. Judge Wilson and Judge Jill Pryor each cogently address some of those problems, and I am privileged to join their dissents in full.
See Wilson, J., dissenting op. at 50–57 (discussing the St. Hubert II panel’s troubling reaffirmation of its ruling that published panel orders from the second or successive context bind all panels of this Court); Jill Pryor, J., dissenting op. at 85–90 (arguing the panel erroneously held attempting a crime of violence itself equates to a crime of violence).
In writing separately, I echo some of my colleagues’ concerns. But beyond that, Mr. St. Hubert’s case offers a valuable illustration of why I’ve been concerned about how this Circuit has parlayed the limited authority given it under 28 U.S.C. § 2244(b) (statute governing second or successive habeas petitions) to stop thorough consideration of the issues presented by people like Mr. St. Hubert, even on his direct appeal. It is an aberration that a statute meant to govern the treatment of inmates who seek to file a second or successive § 2255 motion now serves as a tool for this Court to limit the review of prison sentences on direct appeal. I am convinced this aberration results from our Court failing to follow the plain mandate of 28 U.S.C. § 2244(b)(3)(C). Since this is his case, I will begin with Mr. St. Hubert.

When there is so much disagreement and it takes 90 pages to discuss whether there should be en banc review, why not have it?  The 11th Circuit has a long history of only granting en banc review when there is a defense-favorable issue.  This looks like another example of the most-government friendly appellate court in the country bending over backwards to just rule for the government.  Sigh.

Will Amy Comey Barrett be the next Supreme Court Justice?

If there is an opening during Trump's tenure, my money is on her.  The 46-year old judge on the 7th Circuit just wrote this dissent, arguing that felon-in-possession laws are unconstitutional as applied to non-dangerous felons.  It starts this way:

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward—legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.
18 U.S.C. § 922(g)(1) and Wisconsin Statute § 941.29(1m) would stand on solid footing if their categorical bans were tailored to serve the governments’ undeniably compelling interest in protecting the public from gun violence. But their dispossession of all felons—both violent and nonviolent—is unconstitutional as applied to Kanter, who was convicted of mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and billing Medicare accordingly. Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe. Nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence. Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.

The conclusion:

If the Second Amendment were subject to a virtue limitation, there would be no need for the government to produce—or for the court to assess—evidence that nonviolent felons have a propensity for dangerous behavior. But Heller forecloses the “civic right” argument on which a virtue limitation depends. And while both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data, cf. Skoien, 614 F.3d at 642, that disarming Kanter substantially advances that interest. On this record, holding that the ban is constitutional as applied to Kanter does not “put[] the government through its paces,” see Williams, 616 F.3d at 692, but instead treats the Second Amendment as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion). I therefore dissent.

Meantime, in local news, Riverside House is trying to help recently released defendants reintergrate into the community.  In that vein, it is holding its 1st Annual Recognition Ceremony where AFPD Helaine Batoff and AUSA J.D. Smith are being honored for their work in Care Court.  Very cool!  Get your tickets here.

Review of Confessions of a Cocaine Cowboy

Friend of the blog Billy Corben is known for his uniquely Miami documentaries: The Cocaine Cowboys series, The U series, Dawg Fight, Screwball, and on and on.  They are all must-watch.  So too with his new venture — a play at the Colony Theatre in Miami Beach called Confessions of a Cocaine Cowboy.

The play tells the story of 80's Cocaine Traffickers Rivi (Jorge Ayala) and Griselda Blanco through the eyes of Rivi (played by Yancey Arias).  You’ll also get some of the story told by Detectives Singleton  (Stephen Anthony) and Diaz (Nicholas Richberg), as well as Blanco and Kathy Rundle (both played by Zilah Mendoza). All of the actors were really great, and Mendoza seamlessly goes back and forth between two leading parts.  Billy makes clear that he views both her characters as the villains in the story.  

Billy’s fast-paced persona jumps off the script: the play is funny, smart, and history lesson all at the same time. 

And in an only-in-Miami opening night, the audience included the actual detectives Singleton and Diaz, Blanco’s son (named Michael Corleone), Blanco’s lawyer, a former U.S. Attorney, a federal judge, and the mayor of Miami Beach.  The detectives and Corleone were recognized towards the end of the show to the crowd’s delight.  

Billy loves telling Miami stories and is at his best when he’s doing so.  When he and partner Alfred Spellman were first researching for Cocaine Cowboys and came across the Rivi depo, they joked about turning it into a play. You couldn’t make up some of the stories that Rivi tells, including the insane sex-phone scandal with some of the secretaries at the State Attorney’s office.  

Government rests in Esformes trial

I’m trying to stay away from blogging about this case, but it’s the biggest case going on in the District so here’s a little news. Five weeks in, the government rested. Judge Scola kicked some of the counts, but most will be going to the jury. But not just yet. The defense listed 150 witnesses.

So you wanna be a Magistrate Judge?

Well, step right up.  Judge Barry S. Seltzer is retiring on January 3, 2020, opening up a slot in Ft. Lauderdale.

Chief Judge K. Michael Moore has selected Jon Sale to lead the Magistrate Selection Committee.  That Committee will recommend 5 applicants to the District Court for the final selection.

Although this has not been made public yet, in the near future, the application will be available on the court website and then forward it to FLSD_MagistrateJudgeRecruitment@flsd.uscourts.gov

Good luck all.

Tony Gonzalez named First Assistant at U.S. Attorney's Office

Ariana Fajardo Orshan shook up the office last week, making lots of changes, including naming Tony Gonzalez as her First Assistant. 

Ben Greenberg, who had that role under Willie Ferrer, and then again under Orshan (while serving as Acting U.S. Attorney in between), is moving to Ft. Lauderdale as senior litigation counsel. 

Four years is the right sentence for Manafort

That’s the title for my piece this morning in The Hill. Here’s the intro:

“Too light.”  “Lenient.”  “A slap on the wrist.” “Perverted.” There’s quite a bit of hand-wringing about the 4 year sentence that Judge T.J. Ellis handed down Thursday to Paul Manafort.But Judge Ellis should be commended for doing the right — and hard — thing despite the enormous amount of pressure by the Special Counsel’s Office, the media, and the public to sentence Manafort to 20 years in prison. Judges are meant to be a check on the executive and not just a rubber stamp for oppressive government requests.
Twenty years would have been absurd for a 69-year-old, first time, non-violent offender.  The sentencing guidelines, which came out to 19.5-24.5 years in this case, are deliberately draconian to induce pleas and discourage trials. They are so over-the-top that when a judge issues a fair sentence as Judge Ellis did, it is viewed as too low even though it isn’t. The system is skewed on purpose, to burden the right to trial.
No one will complain when Rick Gates, who pleaded guilty and is cooperating in the same case, is sentenced to far less than 4 years (and very possibly no jail).  And no one will complain when Michael Flynn receives little to no jail.  
Judge Ellis had to balance many competing issues in issuing a fair sentence.  But one factor that thankfully did not come into play was jacking up Manafort’s sentence simply for proceeding to trial.  Those out there calling for 20 years can’t articulate any good reason for giving Manafort such a lengthy sentence while no one else from the Special Counsel’s investigation has received anything even remotely close.  
Four years in prison for a 69-year old unhealthy defendant is not going to be easy by any stretch.  That’s real time.  

U.S. Attorney’s Office recuses from Epstein case

Interesting move.  It’s now assigned to the Atlanta U.S. Attorney’s Office.  The Herald has more:

Just days before a Friday deadline, the Justice Department has reassigned the Jeffrey Epstein victims’ rights case to the U.S. Attorney’s Office in Atlanta, the attorneys representing Epstein’s victims said Tuesday.

Miami federal prosecutors, in a letter to attorneys for the victims on Monday, said they had recused themselves from the case, according to Bradley Edwards and Jack Scarola, representing Epstein’s victims.

The reassignment means that the U.S. attorney for the Northern District of Georgia, Byung J. “BJay” Pak, will oversee the case for the government. Pak, a former Georgia lawmaker, was appointed Atlanta’s chief federal prosecutor by President Donald Trump in October 2017.

The Justice Department is still under a Friday deadline for prosecutors to confer with the victims’ attorneys in an effort to settle the case. On Feb. 22, U.S. District Judge Kenneth A. Marra in Palm Beach County ruled that federal prosecutors, under former Miami U.S. Attorney Alexander Acosta, broke the law when they concealed a plea agreement from more than 30 underage girls in Palm Beach who had been sexually abused by Epstein, a multimillionaire New York hedge fund manager.

News & Notes

1.  Interested in an en banc from the 11th on Twombly and the Sherman Act.  Look no further!  Here ya go.

2.  This is the kind of stuff that our former guest blogger Brian Toth likes to write about.  But he's busy making partner at his new gig with Gelber Schachter & Greenberg.

3.  It would be fun to practice in California.  Here's a white collar case that was Rule 29ed yesterday:

A federal judge in San Francisco took the rare step Monday of dismissing a market manipulation case against a Barclays trader before the jury rendered its verdict, a decision that will prevent federal prosecutors from filing an appeal.

The judge, Charles R. Breyer, found that prosecutors had not proved their case against Robert Bogucki after several days of testimony.

Defense lawyers routinely ask a judge to dismiss charges after the prosecution presents its case, but judges usually rule on the request, called a Rule 29 motion, only after the jury reaches a verdict. Doing so permits prosecutors to appeal in the event the judge does dismiss the case.

“It’s over, and there cannot be a retrial,” said Daniel Silver, a partner with Clifford Chance in New York who was previously a federal prosecutor in Brooklyn. “Very unusual result.”

4.  Boston, not so much.  There, a judge let in some pretty salacious testimony in the big Insys trial:

It’s an old marketing adage: Sex sells. So, Insys Therapeutics Inc. turned to a former exotic dancer, who once ran an escort service, to push sales of its highly addictive opioid painkiller.
Insys’s former vice president of sales and marketing Alec Burlakoff told a Boston jury Friday that he hired Sunrise Lee as a regional sales manager after meeting her at a strip club in Florida, even though she had no relevant experience.
“She met the criteria,” Burlakoff testified. “She was a PHD -- Poor. Hungry. Driven.”
Burlakoff, 45, is among the government’s star witnesses against Insys founder John Kapoor, 75, and other executives, including Lee, who are accused of conspiring to bribe doctors with phony speakers’ fees and duping insurers into covering prescriptions for the company’s Subsys opioid painkiller.
After Burlakoff hired Lee, she didn’t disappoint, he said. The jury had heard earlier she used her sex appeal, including performing a lap dance for a doctor, to persuade physicians to prescribe Subsys more often. The drug was approved only for cancer patients with “breakthrough” pain, but the jury has heard doctors prescribed it to people with arthritis, depression and back pain.
***
An anonymous tip claiming Lee had run an escort service and had posted topless photos of herself online, didn’t deter Insys’s executives. Kapoor’s response was “everybody has a right to make a living and put themselves through school,” Burlakoff said. Lee was asked to delete the photos and did so “swift and fast,” he added.
The salacious testimony also brought swift objections from Lee’s lawyer Peter Horstmann. He was on his feet objecting for most of the testimony. In a request for a mistrial Monday, Horstmann complained that Burlakoff wrongly characterized Lee as a “person with a proclivity to engage in morally questionable activity for financial gain.”
‘The highly prejudicial impact of this salacious propensity evidence cannot now be undone,” Horstmann wrote.
U.S. District Judge Allison Burrough instructed jurors that they were not to accept the claim about Lee’s escort service as true, only that the company investigated it.
The information was presented “in as unprejudicial a way as possible,” the judge said.

White Collar bar to descend on New Orleans this week

It's the big ABA White Collar conference in New Orleans, starting on Wednesday this week (right after Mardi Gras). To get you in the mood, here's the case of Huge Ass Beer fighting Giant Ass Beer in New Orleans:

Beer is big on Bourbon Street, and never bigger than now, as Mardi Gras' climactic weekend kicks into high gear.

The distinction between “Huge Ass Beers” and “Giant Ass Beer" may not matter to many thirsty revelers on their way to the bars, but it has sparked a federal lawsuit.

Huge Ass Beers is the trademarked name for a plus-sized pour of draft beer sold at a trio of related Bourbon Street businesses. With the term printed on their plastic cups and containers, on employees' T-shirts, doormats and huge signs brandished by street barkers, Bourbon Street is plastered with Huge Ass Beers marketing.
giantbeer

An image of Giant Ass Beer was included in court filings for a lawsuit alleging trademark infringement from the creator of Huge Ass Beers.

The three outposts for Huge Ass Beers — the Steak Pit, Prohibition and Cornet — are all owned by Nicholas S. Karno #1 Inc., a company run by Billie Karno, the operator and landlord for a number of businesses along Bourbon Street.

On Tuesday, that company filed a lawsuit in federal court against another string of Bourbon Street bars and clubs for marketing a rival extra-large draft beer as Giant Ass Beer.

Those businesses include the bars Beerfest, Voodoo Vibe and Sing Sing and the strip club Stiletto’s, which are all run by Pamela Olano and Guy Olano Jr.

In the suit, the Huge Ass Beers creator alleges trademark infringement and seeks a restraining order barring the sale of Giant Ass Beer, as well as damages.

Return of Judge Jordan...

... to the District Court.

There's been a bunch of Judge Alaberto Jordan (CA11) sightings in the District Court over the past week, filling in for Judge Martinez. We wish Judge Martinez well and hope that he is okay.

We are also hoping that Judge Jordan continues to make appearances in the district court when judges are out for whatever reason. He has been missed as a trial and sentencing judge.

Here's a sentencing that Judge Jordan conducted yesterday:

Alexander Ros Lazo (Ros Lazo), 54, the owner of T.L.C. Health Services of Miami, was sentenced to serve 87 months in prison. Misleady Ibarra, 46, who performed home health therapy services without a license, was sentenced to serve 24 months in prison. The defendants were sentenced by U.S. Circuit Judge Adalberto Jordan sitting in the Southern District of Florida. Judge Jordan also ordered Ros Lazo to pay $8,603,859 in restitution and to forfeit the same amount, and Ibarra to pay restitution in an amount to be determined. Ibarra and Ros Lazo pleaded guilty in December 2018 to one count of conspiracy to commit health care fraud. Both defendants were charged in an indictment returned on June 21, 2018.

“[F]ederal judges are appointed for life, not for eternity.”

Just a friendly reminder from the Supreme Court that federal judges only get the gig for life. The reminder came from this per curiam opinion addressing the following issue:

May a federal court count the vote of a judge who dies before the decision is issued?

The answer, 9-0, was no.

"A small next step for criminal justice reform: Fix good time credit"

That's the title of my piece this week in The Hill.  Please click through and let me know your thoughts.  Here's the intro:

Both sides of the aisle have rightfully come together on criminal justice reform, including passing the First Step Act. The New York Times said this signature legislation addressing unfairness in the criminal justice system involved some of “the most significant changes to the criminal justice system in a generation.” Both sides also agree, however, that a lot still needs to be done to address a system that incarcerates more people than Russia and China.

The current federal system awards good time credit — 15 percent — for all prisoners who behave. That means for every year done in prison, you receive 54 days off in good time credit.

For a long time, the Bureau of Prisons only gave 47 days of credit, but the First Step Act told BOP that 15 percent was really 15 percent and prisoners should get the full 54 days. Even with this directive, BOP has refused to give this credit, saying that there is an error in the statute, and has asked for Congress to reiterate that it really wants the 54 days of credit applied. This is completely absurd, and both parties agree that this should be fixed immediately. In addition to fixing the 54-day issue, there is one additional modest (and hopefully non-controversial) proposal that should be included.

As it stands, federal prisoners only receive good time credit if they are sentenced to more than a year of prison. That means that if you are sentenced to a year and a day, you will receive 15 percent off with good time and serve about 10 months; however, if you receive a sentence of exactly one year in prison, no such good time credit will be applied, and you will serve that year day for day. That means that the prisoner who receives a longer sentence of a year and a day will serve less time than someone who is sentenced to a year or 11 months. It makes no sense.

El Chapo may get a new trial

Vice News drops this bombshell of an interview with a juror who said that the jury followed the media even though they had instructions not to.  This is big news:

For the first time since the trial of Joaquín “El Chapo” Guzmán ended on Feb. 12, a member of the jury has described what it was like be part of the historic case.

In an exclusive interview with VICE News, the juror claimed that at least five fellow jurors violated the judge’s orders by following the case in the media during the trial. The juror also shared details of the deliberations, the extraordinary security precautions that were in place, and the jury’s views on Chapo, his lawyers, the prosecution, and several key witnesses.

The juror requested anonymity “for obvious reasons” and declined to provide a real name, noting that the jurors didn’t even share their identities with one another. They did form friendships, though, and referred to one another by their numbers or used nicknames based on tastes and personalities. The cast included Crash, Pookie, Doc, Mountain Dew, Hennessy, Starbucks, Aruba, TJ, 666, FeFe, and Loco.

“We were saying how we should have our own reality TV show, like ‘The Jurors on MTV’ or something like that,” the juror said.

The juror reached out to VICE News via email a day after the guilty verdict came down, and we spoke for nearly two hours on a video chat the following day. The 12 jurors and six alternates were anonymous under orders from the judge, and cameras were strictly forbidden inside the courtroom. But they sat in open court for all 44 days of the trial, their faces plainly visible to Chapo and anyone from the press or public who chose to attend.

I was a regular at the trial, and I recognized the juror from my time in the courtroom. The juror shared detailed notes taken during the trial, which were kept against the instructions of the court. Information from the jury selection process provided further corroboration about the juror’s role in the case.

***

Part of my coverage of the trial included sharing news, analysis, and observations from the courtroom on Twitter. The juror said they routinely checked my personal Twitter feed and tweets from other journalists. “We would constantly go to your media, your Twitter… I personally and some other jurors that I knew,” the juror said.

The juror reached out to another juror at the request of VICE News but said nobody else wanted to speak on the record. VICE News agreed to withhold personal details at the juror’s request. To further protect the juror’s identity, gender-neutral “they” pronouns are used throughout this story, and VICE News is not disclosing whether the juror was an alternate or one of the 12 people involved in deliberations.

Judge Cogan informed the jurors after the verdict was handed down that they are allowed to speak to the media, though he cautioned them against it. No other jurors have spoken out publicly, and because they are anonymous and not reachable for comment, parts of this juror’s account could not be independently verified.

If multiple jurors were indeed reading about the case in the media, Chapo’s defense team could seek a new trial.

“Obviously we're deeply concerned that the jury may have utterly ignored the judge's daily admonitions against reviewing the unprecedented press in the case,” said defense attorney Jeffrey Lichtman, who also noted concern that jurors may have seen “prejudicial, uncorroborated and inadmissible allegations” about Chapo during the trial. “Above all, Joaquin Guzman deserved a fair trial.”

Judge Moreno terminates Pottinger agreement

That's the famous agreement protecting the homeless in Miami entered over 20 years ago, named after the lead plaintiff Michael Pottinger.  Judge Moreno held an evidentiary hearing and wrote this 40-page order saying the agreement was no longer necessary.

Here is the conclusion:

Heroes for the Homeless

Although the Plaintiffs have opposed the termination of this agreement, in a very real sense, they are the victors. Their lawsuit, and the work of their excellent and capable counsel,under the guidance of the Americans Civil Liberties Union and the Florida Justice Institute,engendered a revolution in this community as to the treatment and care of persons experiencing homelessness. Twenty years ago, the undersigned could not have predicted the myriad of services made possible by the efforts of the Homeless Trust and Mr. Ronald L. Book. The Court could not have envisioned the dedication of people, like Dr. Pedro Joe Greer and Dr. Edward Suarez, who have taken medicine to the streets of Miami to help people and gain their trust to improve their care. The lifetime of work by Camillus CEO Hilda Fernandez is commendable as he has worked in a variety of roles to assist the homeless and better their lives in a truly compassionate way. The work of Constance Collins at the Lotus House has also contributed to aiding homeless women and children and helped them find solutions to homelessness. lt goes without saying that this community owes a debt of gratitude to Judge Steve Leifman, who has implemented sustainable programs to help the mentally ill, which will continue to improve their circumstances. Sim ply put, Judge Atkins would be proud of the results.

Accordingly, it is ADJUDGED that the Court terminates the Consent Decree and denies the motion to hold the City of Miami in contempt

The New Times covers it here:

One of the nation's landmark homeless-protection laws is now gone.
Since May 2018, the City of Miami has been trying to invalidate a 1998 legal decision that prevented city cops from arresting homeless people for living their lives outside. The so-called Pottinger Agreement, named for homeless Miamian Michael Pottinger, prevented police from, say, arresting homeless people for sleeping outside or placing their items on the sidewalk.
Even with those protections in place, the American Civil Liberties Union of Florida said Miami cops were blatantly harassing the homeless — including spraying them with power washers and arresting a woman who was in dire need of medical care and likely died due to the detainment. The ACLU also argued the City of Miami was trying to terminate the agreement as a way to sweep homeless residents out of the rapidly gentrifying downtown area.
But U.S. District Judge Federico Moreno today terminated the Pottinger consent decree. The ACLU had filed a competing motion to hold the city in contempt of the Pottinger Agreement, but Moreno threw it out.

Jeff Sloman writes op-ed in support of Alex Acosta

The Herald published it here.

It starts this way:

By now, you have probably formed some views on the Jeffrey Epstein case. You are, like me, repulsed by Epstein’s conduct. You probably also believe, as I do now that more facts have emerged, that Epstein deserved harsher punishment than he ended up getting. No one will argue seriously against these views.

But based on the Miami Herald’s “Perversion of Justice” series and the ensuing news coverage, you may also believe that well-connected lawyers corrupted now-Secretary of Labor and then-U.S. Attorney Alex Acosta and his team into giving Epstein a sweetheart deal. They did not. I would know. I was there.

The trial tax and Paul Manafort

I wrote an op-ed in The Hill this morning addressing the absurd trial penalty we have in our country.  Below is the introduction.  Please check it out and let me know your thoughts:

A jury has spoken on Paul Manafort. He was found guilty, and he should be punished. But his reported sentencing guideline range of 19.5-24.5 years is a good example of how our criminal justice system has lost its way.

Once, when trials were common, our system was the envy of the world. Now, trials almost never occur. (In the 1980s, over 20 percent of cases went to trial while less than 3 percent proceed to trial today). The reason is simple: defendants who go to trial and lose in today’s system now suffer “the trial penalty,” and receive a much more severe — sometimes decades longer — sentence simply for exercising a fundamental Constitutional right to trial.

Even innocent people plead guilty because of the risk/reward analysis that all defendants consider. The risks of going to trial have become way too high. You can plead guilty and get probation or go to jail for a manageable amount of time. But if you go to trial and lose... well, you’ll be crushed.

A jury found Manafort guilty of tax and related offenses, but suggesting that a 20 year sentence is appropriate in this case is just wrong. Twenty years! Manafort is a 69-year old, first-time offender. If the judge sentences him to anywhere in that range, he will most likely leave prison in a box.

(UPDATED) "About 20 years ago now, an insightful (and hilarious) lawyer friend of mine said to me—and because this is a family show, I’ll clean it up a bit—“Not everything that s[tink]s violates the Constitution.” If ever a case proved the truth of that little nugget, this is it."

That's Judge Kevin Newsom in this concurring opinion.  I really like this new style of accessible (and fun) writing.  You see it with Kagan on the Supreme Court and with some of the younger judges on the 11th Circuit like Rosenbaum and Newsom. 

UPDATE -- On Friday afternoon, Judge Newsom wrote this concurring and dissenting opinion in U.S. v. Caniff.  It starts this way:

 If forced to choose a favorite movie, I’d have to go with A Man for All Seasons, which chronicles Sir Thomas More’s heroic, principled-to-the-death stand against King Henry VIII’s effort to procure a divorce from Catherine of Aragon—and in the process anoint himself the head of his own newly-formed church. (Christopher Nolan’s Inception runs a close second, for sheer mind-blowing awesomeness, but I digress . . . .) My favorite scene from my favorite movie: a testy dialogue between More and his son-in-law-to-be, the ever-zealous Richard Roper. Roper, anxious that the opportunistic hanger-on Richard Rich intends to double-cross More, who was then serving as the Lord Chancellor of England, pleads (along with More’s wife and daughter) to have Rich arrested on the ground that he’s “bad”—to which More responds, impassively, “There’s no law against that.” To the objection that while they go on “talk[ing],” Rich has “gone,” More rejoins, more emphatically: “And go he should even if he were the Devil himself until he broke the law.” Then, this gem—

Roper: So, now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

* * *

I knew this day would come—eventually, I’d have to hold my nose and cast (and then explain) a vote that I found utterly nauseating. Well, here we are. I couldn’t agree more with the majority—and the staffer-drafters of H.R. Rep. No. 99-910, whoever they were—that “[o]f all the crimes known to our society, perhaps none is more revolting than the sexual exploitation of children, particularly for the purposes of child pornography.” Maj. Op. at 16. And happily for me, Congress has given prosecutors plenty of ammunition to try, convict, and sentence the purveyors and consumers of child porn. But, I respectfully submit, the majority’s construction of 18 U.S.C. § 2251(d)(1)—to hold that when Caniff sent a private, person-to-person text message requesting explicit photos he “ma[de]” a “notice” for them—stretches that particular provision beyond the breaking point.
To be clear, I’m not suggesting that Caniff is the “Devil himself” (although the crimes of which he has been convicted are most assuredly devilish). Nor am I any way intimating that the majority’s construction of § 2251(d)(1) is tantamount to “cut[ting] down every law in [America]”—the majority’s interpretation is plausible, even if (I think) incorrect. And I am most certainly not casting myself in the role of the inimitable More. I’m simply saying that as badly as I’d like to get Caniff—to see him rung up on every count of the indictment—my job is to take the law as I find it, and however regrettable it may be to me, I cannot conclude that § 2251(d)(1) reaches Caniff’s conduct here.

One huge trial in the books; another one just started

The El Chapo jury just came back with a guilty verdict.

Meantime, opening statements were held this morning in the Esformes case before Judge Scola.  Via the AP:

A Florida health care executive used bribery, kickbacks and false paperwork in a $1 billion effort to fleece Medicare and Medicaid, one of the biggest such cases in U.S. history, a federal prosecutor told jurors Tuesday.

But an attorney for 50-year-old Philip Esformes told jurors as trial began in Miami that he was no criminal but a driven businessman who legitimately operated more than 20 nursing homes and assisted living facilities in Florida.

The opening statements kicked off a trial expected to last about eight weeks. Esformes faces decades in prison if convicted because of the scope of the alleged fraud committed between 2006 and 2016. There are also allegations that he bribed a college basketball coach in an effort to get one of his sons on the team.

Assistant U.S. Attorney Elizabeth Young told the jury the fraud involved four steps: bribing doctors to refer patients to Esformes’ facilities, moving them to other facilities when their Medicare eligibility at the first place expired, selling access to patients to others so they could also defraud the government programs, and then starting the process again.

“I happened over and over and over again,” Young said. “Rinse and repeat. And it happened for 10 years.”

Prosecutors say the Esformes network and co-conspirators falsely billed Medicare alone for $1 billion during the scheme, of which about $500 million was paid. Much of the evidence relies on audio recordings between Esformes and two co-conspirators who were secretly cooperating with the FBI and have previously pleaded guilty, Young said.

“He was the mastermind. He made this happen. The evidence will show he was involved every step of the way,” Young said.

Esformes attorney Roy Black, however, told jurors they should be skeptical of the motivations and backgrounds of many government witnesses, including convicted co-conspirators Gabriel and Guillermo Delgado.

“They have stacked their case with con artists, liars, fraudsters and even drug traffickers,” Black said. “We will try to expose all that we can.”

“OPR should investigate real prosecutorial misconduct, not Secretary of Labor Alex Acosta”

That’s the title of my latest piece in The Hill.  Below is the introduction, but please click here to read the whole thing:

Prosecutorial misconduct is rampant in the criminal justice system.  From intimidating witnesses, to hiding exculpatory information, to anonymously blogging to influence jurors, to spying on criminal defense attorneys, to knowingly putting on false testimony, all the way to setting up innocent men. It’s seriously depressing.
Just as depressing as the widespread misconduct itself is the fact that nothing is being done about it. Prosecutors are immune from being sued, convictions affected by misconduct routinely get affirmed because courts find that the misconduct was not “prejudicial,” and nothing ultimately happens to the wrongdoers. They generally keep their jobs, without even a smack on the hand.
Although there’s an office assigned to look into prosecutorial misconduct, called the Office of Professional Responsibility (“OPR”), that office almost never takes any action against bad prosecutors and keeps its findings private. OPR is such a joke that it often rejects even the rare judicial finding of prosecutorial misconduct. One study showed that during a three year period, there were 60 cases of serious judicial criticisms or findings of misconduct and yet OPR found no wrongdoing by any of these prosecutors.
Instead of taking action against bad prosecutors, it was just publicly announced that OPR will be investigating Secretary of Labor Alex Acosta for his handling of the Jeffrey Epstein case ten years ago when he was the U.S. Attorney in South Florida. For those of us who care about real prosecutorial misconduct, this news is truly absurd.

SCOTUS vacates CA11 stay of execution

One of the most conservative judges on arguably the most conservative appellate court in the country granted a stay of execution this week because the Muslim inmate was denied his request to have an imam at his side in the execution chamber, even though the prison would allow a Christian chaplain to be present in the chamber. The very next day, an even more conservative Supreme Court lifted the stay and allowed the execution to go forward in a 5-4 decision.

Justice Kagan explains in her dissent:

To justify such religious discrimination, the State must show that its policy is narrowly tailored to a compelling interest. I have no doubt that prison security is an interest of that kind. But the State has offered no evidence to show that its wholesale prohibition on outside spiritual advisers is necessary to achieve that goal. Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer. Why wouldn’t it be sufficient for the imam to pledge, under penalty of contempt, that he will not interfere with the State’s ability to perform the execution? The State doesn’t say. The only evidence the State has offered is a conclusory affidavit stating that its policy “is the least restrictive means of furthering” its interest in safety and security. That is not enough to support a denominational preference.

SOTU addresses criminal justice reform

Despite all of the partisan clapping/sitting during the State of the Union, there was one nice moment of bipartisanship. It came during the discussion of criminal justice reform. The First Step Act got everyone standing as it was a joint effort. Who would have thought criminal justice reform would be the issue that brought the two sides together? But so much more needs to be done. The United States has more individuals in prison than any other country and more than Russia and China combined. It’s just insane.

Meantime, the President only gets 4 Supreme Court Justices at the SOTU: Roberts, Kagan, Gorsuch, and Kavanaugh.

I don’t think we’ve seen that lineup on a case yet. I wonder if we ever will.

No power or heat at New York federal prison for a week

The New York Times covered this awful story involving no heat during one of the coldest spells every in New York. The prisoners took up banging on the walls and windows.

From the depths of a federal jail on the Brooklyn waterfront, the sound reverberates: a polyrhythmic pounding like a hailstorm on the roof of a shed.

It is the sound of hundreds of men in freezing cells at the Metropolitan Detention Center in Sunset Park, a jail that was virtually without electricity and largely without heat for over a week. With the jail on partial lockdown, inmates have been unable to use phones to call their loved ones, but their percussive banging could be clearly heard to those outside, and to the world beyond.

The inmates bang anything they can — shoes, their fists — against any surface they meet: the walls and windows and bars of the jail that holds them.

Sunday morning, when protesters unfurled a long paper banner across the street from the jail that said “You are heard you are loved,” the inmates banged their approval.

When Catana Yehudah, whose brother Jason Smith is serving a gun possession sentence at the jail, led a chant through a megaphone — “No heat, that’s torture” — the inmates banged louder.

Ms. Yehudah, 50, called for quiet. “Stop banging for one second!” she yelled. The barrage subsided.

“If there is no heat,” she shouted, “bang on the windows!”

The inmates, nearly invisible behind the windows, pounded louder and louder, the fusillade filling the wide empty street.

Some power was finally restored last night, but the heat is still spotty and many cells don't have any heat at all. Let's hope the courts get involved:

Gov. Andrew M. Cuomo called on the federal Department of Justice to determine whether conditions at the jail violated the inmates’ civil rights.

“No one in New York should live in fear that they may freeze to death alone in the dark,” Mr. Cuomo said in a statement. “These allegations are a violation of human decency and dignity. They also raise questions of potential violations of law.”

Federal Bureau of Prisons officials are due in federal court in Manhattan on Tuesday for a hearing ordered by Judge Analisa Torres in response to what she called “disturbing living conditions.”